Appeal from the United States Court of Appeals for Veterans Claims in No. 12-1972, Chief Judge Bruce E. Kasold.
JENNIFER LIBRACH NALL, Baker Botts, LLP, Austin, TX, argued for claimant-appellant. Also represented by CHRISTOPHER GRANAGHAN, DAVID B. WEAVER, JEFFREY S. GRITTON, Vinson & Elkins LLP, Austin, TX.
WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE; Y. KEN LEE, AMANDA R. BLACKMON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before DYK, MAYER, and REYNA, Circuit Judges.
Dyk, Circuit Judge.
Curtis Scott appeals from the decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) denying his claim for service connection for hepatitis C. We affirm.
Scott served on active duty for training in the United States Marine Corps Reserve from January to July 1972. On November 18, 1999, Scott tested positive for hepatitis C. He applied for disability benefits on February 4, 2005, alleging that he contracted hepatitis C in service. His primary theory was that he was infected with hepatitis C when he received air-gun inoculations during his military service. The Department of Veterans Affairs (" VA" ) regional office (" RO" ) denied Scott's claim for service connection on September 20, 2005.
On April 24, 2006, Scott appealed to the Board of Veterans' Appeals (" Board" ) and requested an evidentiary hearing before the Board. See 38 C.F.R. § 20.700(a) (right to a hearing). Scott was incarcerated at the time of his appeal to the Board. On December 6, 2007, the RO sent a letter to Scott, " acknowledg[ing] [his] request for a Video Conference hearing before the Board," and " request[ing] that [Scott] provide us with the date [Scott is] expected to be released from [his] incarceration so we may schedule [his] video conference hearing accordingly." J.A. 575. Scott responded to the RO on December 13, 2007, reiterating his request for a hearing and informing the Board that his " minimum expiration parole date for release is January
13, 2017," and his " next parole review date is scheduled for March of 2009." J.A. 573. On January 14, 2008, the RO notified Scott that his hearing had been scheduled for March 14, 2008, in Houston, Texas. Scott, who was still incarcerated on the scheduled hearing date, failed to appear for the hearing.
On March 23, 2008, Scott requested a rescheduled hearing because he " could not appear for [his] hearing because of [his] incarceration." J.A. 826. The Board denied Scott's request, finding that Scott had " not shown good cause for failing to appear for [his] hearing," but made no mention of Scott's incarceration. J.A. 683. The Board subsequently denied Scott's claim for service connection, noting that Scott " failed to report for his scheduled hearing in March 2008" and that the Board denied his request to reschedule it. J.A. 677.
On appeal to the Veterans Court, Scott, who by this time was represented by counsel, did not raise the hearing issue. The Veterans Court vacated and remanded to the Board due to an inadequate medical examination, without mentioning the hearing issue. In remanding to the RO, the Board noted the hearing issue but that Scott " has not renewed his request" for a hearing. J.A. 221. On November 18, 2011, the RO continued the service connection denial without mentioning the hearing issue. Scott again appealed to the Board via a re-certification of appeal form which checked " YES" in answer to " WAS HEARING REQUESTED?", but Scott did not raise the hearing ...